Hayward v. Hayward

• Decision Date: 16 June 1908
• Citation: 199 Mass. 340,85 N.E. 158
• Parties: HAYWARD et al. v. HAYWARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 340

85 N.E. 158

HAYWARD et al. v. HAYWARD.

Supreme Judicial Court of Massachusetts, Plymouth.

June 16, 1908

COUNSEL

Henry F. Parker, for Corinne L. Hayward.

Warren Goddard, for Edith H. Hayward and Harry W. Flagg.

OPINION

MORTON J.

This is a petition by the executors for instructions concerning the construction of the will of one Hannah Corinne Hayward. It comes here on appeal from the decree entered by the single justice reversing, on appeal, the decree of the probate court. The evidence bofore the single justice was taken by a commissioner and is all before us. By her will the testatrix after directing the payment of her just debts and funeral charges, and constituting and appointing her brothers Albert Francis Hayward and John Parker Hayward executors, and her brother John Parker Hayward trustee with provisions for the appointment of a successor in case of the death of either gave to her two nephews one hundred dollars each, to her niece Corinne Louise Hayward, daughter of Albert L., her diamond ring; to her niece Edith Howland Hayward, daughter of John Parker, her gold watch and chain; to her brothers in equal shares all money which she had on deposit or otherwise at the time of her decease after payment of the preceding legacies, and to her brother Albert Francis 'all the rest and residue of my personal property of every description.' Then come the devises which gave rise to the questions before us:

'I give and devise to said Corinne Louise Hayward one undivided half of all the real estate, of which I am now or of which I may hereafter die seised or possessed or be in any manner entitled at the time of my decease.

'I give and devise all the rest, residue and remainder of my real estate of which I am now or of which I may hereafter die seised or possessed or be in any manner entitled at the time of my decease, to said John Parker Hayward, and upon his death as before provided to Henry W. Flagg in trust * * * to pay over the net income for the benefit of Edith Howland Hayward during her natural life and upon her death leaving issue then said trust estate shall be paid over to such issue discharged of all trusts.'

Provisions follow as to what shall be done with the trust estate in case of the death of Edith Howland Hayward without issue, and relating to its management, which are not, we think material. It appeared that the testatrix was at the time of her death 68 years old and had never been married; that she owned a parcel of land on Green street in Brockton having a frontage of about 92 feet; and that on this lot were two tenement houses, each fronting on the street, and that a line drawn through the middle of the lot from front to rear would lie entirely in the space between the two houses. This was all the real estate which the testatrix had at her decease, and the evidence tended to show that it was the only real estate which she had ever owned. It was subject to a mortgage of $5,000 at the date of the will and at the death of the testatrix. It was agreed at the hearing before the single justice that the personal property was insufficient to pay the debts including the mortgage.

The two questions on which the executors prayed to be instructed were:

'(1) Is the devise to said Corinne Louise Hayward a general or specific devise?

'(2) Should said devise be exonerated from the mortgage?'

We do not find it necessary to consider whether the devise to Corinne Louise Hayward was specific or general. If it is to be regarded as a specific devise it is plain...